1. I do not think it necessary for the purpose of the disposal of these revision petitions to express any final opinion on the effect of Ex. I on the status of the family consisting of the 1st defendant and his sons, the second and 3rd defendants. It is sufficient for the present merely to say that the authority of the decision in Appa v. Ranga 6 M. 71 : 7 Ind. Jur. 71, has been questioned by a Division Bench of this Court in Jagannadha Rao v. Viswesam (1924) 47 M. 621 : 80 Ind. Cas. 228 : A.I.R. 1924 Mad. 682 : 46 M.L.J. 590 : 19 L.W. 691 : 34 M.L.T. 249, and the matter may have to be reconsidered when it becomes necessary to decide that question. Mr. Govinda rajachari on behalf of the petitioners contends that the present case is on all fours with the case in Veerappa Chettiar v. Annamalai Chettiar 68 M.L.J. 157 : 156 Ind. Cas. 439 : A.I.R. 1935 Mad. 316 : (1935) M.W.N. 193 : 41 L.W. 431 : 7 R.M. 699. I am not prepared to agree with him. The releasing cc-parcener had in that case taken as hare for himself though a much smaller share according to the creditors' contention than he would have been entitled to in a bona fide partition. It was, therefore, possible for the Court in that case to say that there was a division in status, though it may be open to the creditors to insist that the releasing co-parcener should, have been allotted a large share.
2. In the present case Ex. I was executed practicallyas part of the arrangement between the 1st defendant and his father under Ex. II. Defendants Nos. 2 and 3 are not specifically referred to in Ex. II but properties which are allotted to the 1st defendant under Ex.II as representing his share are under Ex. I released in favour of the 2nd and 3rd defendants with the grandfather as their guardian. The reason is recited in Ex. I as follows: 'for the fear that I may contract debts and that I may waste all the properties'. This reasonwill as much justify a mere divesting of the 1st defendant's right in the properties dealt with under Ex. I as a divisionin statusbetween the 1st defendant on the one handand defendants Nos. 2 and 3 on the other. It is sufficient for the purpose of this case to say that Ex. I undoubtedly operates to divest the 1st defendant of all rights he had in the properties covered by Ex. I and make them the separate properties of the 2nd and 3rd defendants. As the present plaintiffs became creditors long after the date of Ex. I, it is unnecessary to consider whether, construed as above, Ex. I may or may not be open to impeachment by the then creditors of the 1st defendant on the ground that no provision has there in been made for the discharge of existing debts.
3. I will only add, to avoid any misapprehension, that in dealing with the possibility of defendants Nos. 1 to 3 having any other property joint between themselves by reason of any subsequent acquisition, it must be borne in mind that acquisitions made only out of the income of the properties covered by Ex. I cannot be regarded as their joint properties because I have held that the properties covered by Ex. I are the separate properties of defendants Nos. 2 and 3.
4. I would accordingly vary the decree of the Court below by substituting the words 'joint family properties of defendants Nos. 1 to 3 if any exist after excluding those covered by Ex. I and the acquisitions made out of their income' in place of the words 'joint family properties' after the reference to 2nd and 3rd defendants. Defendants Nos. 2 and 3 will be liable for the costs, here and m the Court below only if there are joint family properties of the kind above indicated and the costs will then bepaid outof them.